Your Right to Know

WASHINGTON — When President Barack Obama proclaimed that those who commit sexual assault in the
military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably
discharged,” it had an effect he did not intend: roiling legal cases across the country.

In at least a dozen sexual-assault cases since the president’s remarks at the White House in
May, judges and defense lawyers have said Obama’s words as commander in chief amounted to “unlawful
command influence,” tainting trials as a result. Military-law experts said that the president’s
remarks were certain to complicate almost all continuing prosecutions for sexual assault.

“Unlawful command influence” refers to actions of commanders that could be interpreted by jurors
as an attempt to influence a court-martial, in effect ordering a specific outcome. Obama, as
commander in chief of the armed forces, is considered the most-powerful person to wield such
influence. The president’s remarks might have seemed innocuous to civilians, but military-law
experts say that defense lawyers will seize on the president’s call for an automatic dishonorable
discharge, the most-severe discharge available in a court-martial, arguing that his words will
affect their cases.

“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J.
Romig, the former judge advocate general of the Army and the dean of the Washburn University School
of Law in Topeka, Kan. “Every military defense council will make a motion about this.”

At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to
dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a
lower-ranking officer to perform oral sex on him, among other charges.

In Hawaii, a Navy judge ruled last month that two defendants in sexual-assault cases, if found
guilty, could not be punitively discharged as a result of Obama’s remarks. In Alexandria, Va., Eric
S. Montalvo, a former defense counsel in the Marine Corps who is in private practice specializing
in military law, has cited the president’s words in motions to dismiss two sexual-assault
cases.

Obama’s comments come at a time of intense scrutiny of sexual assault in the military. A recent
Pentagon survey found that an estimated 26,000 men and women in the military were sexually
assaulted last year, up from 19,000 in 2010. On Sept. 30, the end of the 2012 fiscal year, about
1,600 continuing sexual-assault cases in the military were awaiting either action from commanders
or the completion of an investigation.

White House officials said that Obama’s remarks, made in response to a reporter’s question, were
meant to demonstrate his concern.

“The president was absolutely not trying to be prescriptive,” said Kathryn Ruemmler, the White
House counsel. “He was listing a range of examples of how offenders could be held accountable. The
president expects all military personnel who are involved in any way in the military-justice
process to exercise their independent professional judgment.”